92 Decision Citation: BVA 92-24402
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 90-48 406 ) DATE
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THE ISSUE
Entitlement to an evaluation in excess of 50 percent for
post-traumatic stress disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
G. Wm. Thompson, Counsel
INTRODUCTION
The veteran had active service from July 21, 1965, to
August 11, 1965, and from February 1966 to November 1969.
He is credited with 2 years, 1 month and 25 days of active
service; 8 months and 6 days of which were spent in
Vietnam. His military specialty was O5C, radio teletype
operator. The veteran's decorations, citations, etc., do
not include any combat-related awards.
This case was previously before the Board of Veterans'
Appeals (Board) and remanded for further development in July
1991. There was additional rating action in January 1992,
followed by a supplemental statement of the case later that
same month from the St. Petersburg, Florida, Regional Office
(RO). The case was returned to the Board in July 1992. The
veteran was originally represented in this appeal by
Paralyzed Veterans of America, Inc.; however, the veteran
changed his representative to the Disabled American
Veterans, in March 1991. That organization submitted
additional written arguments on behalf of the veteran,
received in August 1992.
In March 1991, the veteran filed a claim for service
connection for non-Hodgkin's lymphoma and chloracne. These
issues have not been developed for appellate review and are
not inextricably intertwined with the issue on appeal and
therefore, will not be considered by the Board at this
time.
REMAND
The veteran's representative, in the August l992 informal
hearing presentation, asserted that the veteran had not been
evaluated by the RO under 38 C.F.R. § 4.l6(c) (l99l). The
representative asserts that the veteran is socially and
industrially incapacitated by virtue of his
service-connected post-traumatic stress disorder and that he
is unable to sustain employment as a result of his
decompensation. The representative believes that the
veteran meets the criteria for a 70 percent evaluation and
therefore, under the provisions of 38 C.F.R. § 4.l6(c), a
total rating would be in order.
The Board points out that the issue of entitlement to a
total rating based on individual unemployability is
intertwined with the certified issue. The duty to assist
extends to consideration of all benefits to which a veteran
may be entitled under the law. Littke v. Derwinski,
l Vet.App. 90 (l99l). In addition, the veteran submitted
additional evidence directly to the Board in August l992
which has not been considered by the RO. Initial
consideration by the RO is required. Board of Veterans'
Appeals: Rules of Practice, 57 Fed. Reg. 4128 (l992) (to be
codified at 38 C.F.R. § 20.l304(c)). This case is,
therefore, REMANDED for action as follows:
l. The RO should secure and associate
with the claims folder all records of
treatment for the veteran since January
l992.
2. The RO should consider the veteran's
entitlement to a total rating under 38
C.F.R. § 4.l6(c), per the August l992
request.
3. Following completion of the above, the
RO should review the evidence and
determine whether any part of the
veteran's claim may now be granted. If
not, the veteran and his representative
should be provided with an appropriate
supplemental statement of the case and be
given an adequate opportunity to respond
thereto.
After the above, the case should be returned to the Board for
further appellate consideration.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
WILLIAM J. REDDY
PHILIP E. WRIGHT
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 57 Fed. Reg. 4126 (1992)
(to be codified as 38 C.F.R. § 20.1100(b)).